Most employers these days recognize their duty not to retaliate against their employees for engaging in protected conduct, such as complaining about discrimination, filing a wage or workers’ compensation claim, or reporting a matter of public concern to the appropriate governmental body. Unfortunately, some of those same well-informed employers seem unable to resist the temptation to take a parting shot at their former employees after the employment relationship ends.

Yet this misconduct is no less harmful — and no less unlawful. See Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Employers should be aware that the end of the employment relationship does not spell the end to the law’s promise of protection from retaliation.

To establish a claim for retaliation, an employee must show that: (1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) she suffered an adverse action; and (4) a causal connection exists between the alleged adverse action and the protected activity. Although proving causation can be a particular challenge for post-employment retaliation plaintiffs, circumstantial evidence can suffice. Courts have consistently held, for instance, that close temporal proximity between the employer’s earliest opportunity to retaliate and the retaliation itself can form the basis for the causation element. See Templeton v. First Tenn. Bank, 424 F. App’x 249 (4th Cir. 2011).

A post-employment action may violate the law if it “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). But how can an employer hurt an employee after the employee has already left? It can happen in more ways than one might think.

Retaliatory Lawsuits

The filing of frivolous lawsuits or counterclaims against former employees is one prohibited method of retaliation against former employees. For example, I once represented a woman who sued her former employer under Connecticut’s wage statute. When the employer frivolously countersued for breach of contract, the arbitrator awarded my client the cost of her attorney fees for defending the meritless claim.

Although courts are virtually unanimous in their condemnation of frivolous retaliatory lawsuits, more disagreement exists about whether non-frivolous legal claims can support an allegation of unlawful retaliation. The U.S. Supreme Court held in Bill Johnson’s Restaurants that the filing of a well-founded lawsuit could not be enjoined as an unfair labor practice under the National Labor Relations Act (NLRA), even if the lawsuit would not have been commenced but for the employer’s desire to retaliate against an employee for exercising his protected rights. Many federal courts seem to read Bill Johnson’s Restaurants to apply beyond the context of organized labor.

Some courts have held, however, that even where an employer has an otherwise legitimate right to bring claims against an employee, it nonetheless may be held liable for doing so if the employee can show that that the action was taken to retaliate against her for asserting a protected right. For example, in Arthur Young & Co. v. Sutherland, 631 A.2d 354 (D.C. 1993), a former employee filed a retaliation claim against her employer under the D.C. Human Rights Act based upon the employer’s foreclosure of the employee’s property (which served as collateral on a loan to the employee) after the employee complained of discrimination. The court held that, while the employer had the legal right to foreclose, the statute barring retaliation at issue “contains no safe harbor for otherwise lawful acts done for an improper retaliatory purpose.”

As Connecticut’s courts routinely do in interpreting our Fair Employment Practices Act, the Arthur Young Court looked to analogous federal caselaw to interpret its local anti-discrimination statute. And those decisions, the court said, held that the anti-retaliation provision of Title VII precludes an employer from asserting even a valid legal claim if the plaintiff can prove that “the employer’s motive in asserting the claim was impermissible retaliation.” See also Spencer v. Int’l Shoppes, Inc., 2010 WL 1270173 (E.D.N.Y. Mar. 29, 2010) (“Even if the litigation is not frivolous, it still may be considered retaliatory if motivated, even partially, by a retaliatory animus.”); and Durham Life Ins. Co. v. Evans, 166 F.3d 139 (3d Cir. 1999) (rejecting the application of Bill Johnson’s Restaurants to non-NLRA retaliation claims, and finding that the employer’s filing of a lawsuit against the employee for breach of a non-competition agreement after the employee resigned because of sex discrimination was retaliatory conduct under Title VII).

Retaliatory References

Unlawful retaliation may also occur when a former employer provides a negative reference or otherwise conveys damaging information about a former employee to that employee’s prospective future employer. In Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005), for instance, plaintiff Donna Jute’s prospective employer revoked an offer of employment after her former supervisor falsely advised the employer that he could not discuss her performance because she “had a lawsuit pending” against the former employer. The Second Circuit held that Jute’s claims against her former employer could reach the jury based solely on circumstantial evidence that the defendant’s supervisor’s statement had caused the revocation of the third-party offer.

The post-employment retaliation experienced by Corey Coles was even more extreme. See Coles v. Deltaville, 2011 WL 666050 (E.D. Va. Feb. 14, 2011). After Coles filed an Equal Employment Opportunity Commission complaint in response to his termination from Deltaville, the employer engaged in a campaign to ensure that Coles never worked again.

Each time Coles found a new job, his manager at Deltaville faxed a copy of Coles’s prior EEOC charge to the new employer and then personally contacted the new employer to warn that it could be next. Indeed, one subsequent employer told Coles while terminating him: “I suppose you are going to file a charge against me like you did against [your former employer].” In denying the defendant’s motion to dismiss the retaliation claim, the court concluded that Deltaville’s retaliatory intent could be presumed.

Negative reviews do not need to be successful to be actionable. As the Third Circuit explained, “an employer who retaliates cannot escape liability merely because the retaliation falls short of its intended result.” EEOC v. L.B. Foster, 123 F.3d 746 (3d Cir. 1997). See also EEOC Compliance Manual § 8-II(D)(2) (May 20, 1998).

Opposing Unemployment Benefits

A frivolous opposition to a former employee’s application for unemployment benefits can constitute retaliation. This is especially true where the employer makes false statements in service of its meritless opposition, such as claiming that the employee was terminated “for cause.” See Steele v. Shafer, 535 F.3d 689 (D.C. Cir. 2008); Wright v. Life Starts Ctrs. Inc., 2000 WL 1643781 (N.D. Ill. Oct. 20, 2000).

Job Applicants Protection

If employees are protected from retaliation after their employment, what about retaliation that occurs before the employment relationship begins? Can an employer refuse to hire a job applicant, for example, because of the applicant’s prior charge of discrimination against a third party? The case of McMenemy v. City of Rochester, 241 F.3d 279 (2d Cir. 2001), suggests the answer is no. While the retaliation in McMenemy came from the employee’s current employer, rather than a future one, the court’s language could not be clearer: “Title VII protects an employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Title VII proceedings.”

Yet the Fourth Circuit has held that, with respect to the Fair Labor Standards Act (FLSA), an employer may indeed follow that very rule. In 2011, in the first ruling on this issue by a court of appeals, the Fourth Circuit ruled that a job applicant cannot bring a retaliation lawsuit against a prospective employer under FLSA, holding that the FLSA’s anti-retaliation protections do not extend to prospective employees. Dellinger v. Sci. Applications Int’l Corp, 649 F.3d 226 (4th Cir. 2011), cert. denied, 132 S. Ct. 1542 (2012). The dissent in Dellinger dissenting discussed Robinson v. Shell Oil Co. at length, noting that “[t]he majority affirms with no discussion of Robinson or its established methodology, giving its thumbs-up to the company’s conduct and paving the way for other employers to adopt similar practices.” While Robinson was a Title VII case, the dissent noted that “its analytical framework readily admits of a more widely reaching application, and it should therefore powerfully inform our analysis of Dellinger’s appeal.”

Whether other circuits will embrace the Dellinger decision or the reasoning in its dissent remains to be seen. The lesson here remains nonetheless that, in most contexts, employers are not “off the hook” just because their employees are off the payroll, and it would behoove them to resist the temptation to retaliate against their former employees. With vigilant plaintiff’s employment lawyers available to safeguard those employees’ interests, any gratification associated with taking that “parting shot” is likely to be short lived.•